018-SLLR-SLLR-2005-V-1-NUWAN-DE-SILVA-vs.-THE-ATTORNEY-GENERAL.pdf
146Sri Lanka Law Repons(2005) 1 Sri L. R.
NUWAN DE SILVAVTHE ATTORNEY GENERALSUPREME COURTS. N.SILVA, CJBANDARANAYAKE, JYAPA, J.
DE SILVA, J ANDJAYASINGHE, J
SC APPEAL NO. 18/2003 (TAB)
H. C. COLOMBO NO. 267/9916TH MARCH AND 7TH AND 28TH MAY, 2004
Criminal Law – Penal Code – Kidnapping a boy (with the object of extortingmoney) and the boy's murder in the course of extracting ransom – Sections354, 296 and 375 of the Penal Code – Conviction based on circumstantialevidence and confession – Sections 127 and 24 of the Code of CriminalProcedure Act – Was the accused guilty of murder or culpable homicide notamounting to murder?:
Witness Anoma had seen the deceased boy Sadeepa who returned fromschool as usual, in a van (about 1.45 p.m.) walking to his house on 8.10.1999.She also saw the accused speaking to the boy.
According to the boy’s uncle, the boy had his meal, went out and returned.Thereafter he watched television and left again. The boy was not seen thereafter.The boy’s father Jayantha de Silva, a gem and jewellary shop owner, receivedunidentified telephone calls to say that the boy had been abducted and to payRs. 2.5 million for his release by keeping the money on a particular telephonebooth whereupon the boy could be collected from a given point. Jayantha deSilva told the caller that the sum will be given in foreign currency.
Witness Kanishka who had also telephoned Jayantha de Silva on theaccused’s request was told by the accused that he was getting the money inforeign currency, which supports Jayantha de Silva’s story. On the next Sunday,Jayantha de Silva, took the money with a note made by him regarding thedetails of the currency and kept it on the telephone booth; but the boy was notreleased.
However, on information provided by a relative of Jayantha Jayaantha de Silvathe police had monitored the telephone calls and the movements of the witness(Jayantha de Silva) and arrested the accused with the money. On a statement
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made by the accused, the police were taken to the boy’s grandmother's homeclose by. Thereafter the accused showed the place where the body of the boywas concealed, namely in a cess-pit.
The accused was arrested and remanded with four others. After about 10 daysof remand the accused wished to make a confesion to the Magistrate whorecorded the confession under section 127 of the Code of Criminal ProcedureAct, (the Code) after giving the accused numerous opportunities to considerthe matter. The Magistrate satisfied herself that the confession was voluntaryand not vitiated by any inducement, threat or promise. At a voir dire inquiry, theHigh Court was satisfied about the voluntary nature (validity) of the confessionand admitted it in evidence.
The accused.told the Magistrate that he had a love affair with a girl but as hehad no job the marriage was objected to. This was the motive for kidnappingthe boy (on his experience of what he had watched on television), to pbtainquick money as ransom. He enticed the boy to his grandmother's house byoffering birds' feathers and telephoned the boy's father Jayantha de Silva. Asthe boy was next to the accused at the time, the accused closed his nose andmouth and took him to a room where the boy fainted. Believing that the boy haddied, the accused strangled the boy until he really was dead and dumped himin the cess pit having placed the body in a fertilzer bag.
The accused also told the Magistrate that the reason for the confession washis sense of guilt and to free four others, his friends, who were also in remandbut not involved in the crime. The accused was convicted of the offencescharged despite his denial by evidence at the trial which was rejected.
Held:
The conviction of the accused was justified on the oral andcircumstantial evidence and/ or the confession.
The confession was voluntarily made in terms of section 127 of theCode read with section 24. Factors such as the accused’s knowledgeof the strength of the case against him and known to the police or thedesire to free his friends are irrelevant. Voluntary in ordinary parlancemeans “of one's own free will."
The burden of proving that the confession was not vitiated by section 24of the Code is on the prosecution.
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Having regard to all the factors including the strangulation of the boyand the concealment of the body of the boy in a cess pit, there is nodoubt as to the murderous intention. Hence the offence of causing theboy’s death amounted to murder and not culpable homicide notamounting to murder.
Cases referred to :
Ibrahim v R. 1924 AC 599 at 609
Queen v Cecilin 58 NLR 473 at 475
R v Rennie (1982) 1 All ER 385, 388
APPEAL from the judgment of the High Court (TAE
Ranjith Abeysuriya, P. C. with K. S. Ratnavale and Thanuja Rodrigo for accusedappellant.
Dappula de Livera, Senior State Counsel for Attorney – General
September 09, 2004SARATH N. SILVA, C. J.
This is an appeal from the conviction entered and sentences imposedon the accused appellant (the accused) at a Trial at Bar of the High Court.In terms of Section 451 (3) of the Code of Criminal Procedure (Amendment)Act, No. 21 of 1988, the appeal has to be heard by a Bench of not lessthan 5 Judges of this Court.
The accused was charged on 3 counts of, having kidnapped a boynamed Sadeepa Lakshan, (an offence punishable under section 354 ofthe Penal Code), committing the murder of the boy (an offence punishableunder Section 296 of the Penal Code) and of extorting Rs. 2.5 million fromNihal Jayantha de Silva being the father of the boy (an offence punishable' under Section 375 of the Penal Code), between the 8th and 11 th of October1999.
The High Court convicted the accused on all 3 counts and he wassentenced to death on the count of murder and to terms of imprisonmentand fines .on the other counts.
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The prosecution relied on a confession made by the accused to theMagistrate recorded in terms of Section 127 of the Code of CriminalProcedure Act, No. 15 of 1979 and on several items of circumstantialevidence.
Prior to the commencement of the trial a voir dire inquiry was held todecide on the admissibility of the confession. The prosecution led theevidence of the Magistrate and several other witnesses at that inquiry. Theaccused did not adduce evidence and the High .Court ruled that theconfession is admissible in evidence.
At the trial the accused gave evidence denying any involvement in theincident. The High Court has disbelieved the evidence of the accused.
Learned President’s Counsel for the accused did not make anysubmission as to the reliance placed by the High Court on the items ofcircumstantial evidence or as to the reliance placed by the High Court onthe items of circumstantial evidence or as to reliance the rejection of theevidence of the accused. He submitted that the confession was notvoluntary and vitiated by Section 24 of the Evidence Ordinance. As analternative, he submitted that in any event the conviction for the offence ofmurder should be reduced to culpable homicide, since the finding onmurderous intention cannot be sustained.
Learned Senior State Counsel, whilst supporting the admissibility ofthe confession submitted that in any event the items of circumstancialevidence adduced by the prosecution leads to the necesssary inferenceof guilt on all charges. He further submitted that the evidence as to themanner in which death was caused and the relevant circumstancesestablished beyond reasonable doubt that the accused acted with amurderous intention.
The material facts as disclosed in evidence are as follows:
The deceased, being an eight year old boy, travelled to school regularlyin a van from which he alighted on his return from school, at the top of theroad leading to his house at Beruwala, along Galle Road. He had to walkabout 100 feet to his house, located on the road leading to a largetourist hotel. Witness Anoma Anjalie Priyalatha worked in a shop situated
150Sri Lanka Law Reports(2005) 1 Sri L. R.
at the turn off to the deceased boy's house. She has stated that usuallythe deceased returned around. 1.45 p.m. to 2.00 p. m. and that she was inthe habit of saying a few words to the boy. According to her evidence on
being the day on which the boy was last seen alive, she■remembered seeing the boy alight from the van as usual round 1 .'45 andwalking down the road leading to his house. At that time she saw theaccused who was living in the vicinity going to the boy on a bicycle. Shehad seen the accused speaking to the deceased boy. This did not seemunusual to her since the accused was frequently seen in theneighbourhood.
Witnes Shanie de Silva, a maternal uncle was the only person in thehouse when the boy returned. He stated that the boy came home at theusual time, changed his clothes and had a meal of rice and curry. Thereafterhe went out to a nearby house to play. The boy had returned shortly,watched television for sometime and left again. He did not see the boytherafter.
The first information that the boy was missing was received by thefather of the boy, witness Nihal Jayantha de Silva, being a wealthybusinessman who owned a gem and jewellery shop at the nearby Aluthgamatown.
He stated that at about 3.30 p.m. on 8th, he received a telephone callat this shop. The unidentitied caller said that a child of his has beenkidnapped and threatened that if this was revealed to anybody includingthe Police, the family would be finished off. The caller demanded a ransomof a sum of RS. 2.5 million to release the child. He did not identity thevoice of the caller. Thereafter he made inquiries about his children anddecided to check on the whereabouts of the deceased boy, being theyoungest and was informed by his brother – in – law that the boy had leftthe house in the manner stated above and not returned. He got the secondransom call” at about 5.30 p. m. from the same person. He pleaded withthe person to release the boy and stated that the money would be given.He inquired as to the place to which the money should be brought towhich the caller replied that it cannot be done in a rush.
Thereafter he set about to collect money which turned to be difficultsince the banks were closed. He did not get any further calls and sat bythe telephone the whole night.
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The next morning at about 9.15 he got another call from the sameperson and thereafter several other calls in the course of which he indicatedhis difficulty to raise the full ransom of 2.5 million and pleaded that theamount be reduced to 1.3 million being the amount he had collected. Thiswas refused. Subsequently, he received a call on Sunday afternoon beingthe 11 th. At that time he indicated that the amount of Rs. 2.5 million wasready and that some money was in foreign currency. He received severalcalls as regards the payment of the ransom culminating in a call shortlyafter 11 in the night on Sunday. He was asked to go to a point about 1250meters from his shop where there was a telephone booth, situated in frontof Thelma Studio and to keep the money in the manner indicated. He wasfurther informed that thereafter he should go to another point at whichplace the boy would be released to him. He complied with the demandand placed the money in the telephone booth, as directed. The boy wasnot returned although he stayed at the given point for about 1/2 an hour.He was then informed that the police had arrested the person who tookthe ransom.
Although the father of the boy, witness Jayantha de Silva, did not informthe Police of the matter, a relative of his who worked in the shop did in factinform the Police and it appears that the police kept tab of all the calls andthe movements of the witness. In this way they were able to arrest theaccused shortly after the ransom was removed by him and moneyincluding a note made by Jayantha de Silva of the currency that was keptby him, was found in the possession of the accused. The accused madea statement that he could point to the Police the place where the body ofthe deceased was concealed. Consequent to the statement the Policefound the body inside a cess pit of a house within close proximity to thehouse of the deceased along the same road.
The prosecution adduced evidence that this house belonged to thegrand mother of the accused who had given it out to certain persons whowere working in a hotel. These persons were usually away from the houseduring day time. Since there were several inmates, the key was keptconcealed in a place known to the accused, as well.
The prosecution also adduced the evidence of one Gayan Kanisha, afriend of the accused, who had at one point spoken to the father of thedeceased on the phone. He stated that he spoke over the phone at the
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request of the accused and said to be a person at the other end,” to dothe job fast without “behaving like a child". Prior to the intervention, heheard the accused talking about the money being in foreign currency.This supports the evidence of Jayantha de Silva, who refers to one occasionwhen another person spoke and uttered the words repeated by witnessGayan Kanishka.
Thus it is seen that the items of circumstantial evidence implicate theaccused with having talked to the boy shortly before the time hedisappeared. He is linked up with the ransom calls to the deceased boy’sfather. The ransom money including the note in the handwriting of thefather was found in his possession. He knew the place where the bodywas concealed and had access to that house.
The accused failed to explain anyone of these items of circumstantialevidence. His evidence was a total denial which is clearly unacceptable. Iam of the view that the High Court rightly rejected his evidence.
Learned President’s Counsel for the accused did not make anysubmission that the evidence of the accused being a total denial shouldbe accepted even to the slightest degree.
I am inclined to accept the submissions of the learned Senior StateCounsel that the strong items of circumstantial evidence unexplained bythe accused would in itself be adequate to establish the charges againstthe accused. However, since the High Court has laid reliance on theconfession and learned President's Counsel submitted that the Courterred in placing such reliance, I would now consider the submissions inthis.regard.
As noted above, the confession was recorded by the Magistrate interms of Section 127 of the Criminal Procedure Act. The accused wasarrested late in the night of 11 th October and he was held in custody on adetention order (which was permissible at that time) upto 17th Ocober.On that day he was brought before the Magistrate and he was ordered tobe remanded until the 27th.
On 17th October when the accused was produced before the actingMagistrate, he expressed the desire to make a confession. He was then
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informed that a confession could be made on the next date when thecase came up before the permanent Magistrate. On the 28th the accusedwas brought from prision, but could not be produced in Court since therewas a mass demonstration around the Kalutara Courts. People wereagitated by the incident that had taken place and were gathered outsidedemanding that justice be meted out. The Magistrate, at that stage, hadquite rightly decided not to record the statement in Court, but requestedthe prison authorities to produce the accused at her residence at 5.00 p.m. When the accused was brought to the residence, the Magistrate notedthat the accused was agitated by the commotion thaf had taken placenear the Courts. Thereafter she postponed the recording of the confessionto the next date and directed that the accused be produced at her chambersat 10.30 a. m. Since there was normalcy around the courthouse on thatday, the Magistrate had put several questions to the accused to ascertainwhether the confession was being made voluntarily. She thereafter allowedtime to the accused to reflect on the matter of making a confession andquestioned him once again 1 1/2 hours later. On that occasion too theMagistrate asked a series of questions from the accused to ascertainwhether the statement was being made voluntarily and on being satisfiedas to voluntariness commenced recording the statement which took about1 1/2 hours.
The accused in the statement revealed the entire incident from thepoint at which he decided to commit the offence of extortion. He had a loveaffair with a girl in the area and there was an objection on the part of the girland her mother to the continuance of the affair, since he had no job. Atthat time he had seen on television the news of an incident of abductionand ransom, where a large sum of money had been paid out. He decidedthat he could make quick money in this way and picked on the deceasedboy as a person whocould be kidnapped and his father being a wealthybusinessman as the person from whom ransom could be obtained. Heenticed the boy who was well known to him to come to the grandmother'shouse on the pretext that he could give him some birds' feathers. Afterthe boy came there he telephoned the father. He has stated that hesuspected that father identified his voice and attempted thereafter to keepthe boy in concealment. He kept his hand on the mouth and nose of theboy and took him to a room inside. At that stage the boy fainted. Hethought that the boy had died and strangled the boy till the breathingstopped. Thereafter he put the body in an empty fertilizer bag and droppedit in the cess pit which was covered with a concrete slab.
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• The contents of the confession with regard to the ‘ransom calls’ andother particulars are consistent with the other evidence adduced by theprosecution. The accused has also admitted the arrest, the finding of themoney and the dead body.
Learned President’s Counsel submitted that the questioning done bythe Magistrate as to voluntariness does not satisfy the requirements inSection 24 of the Evidence Ordinance and is inadequate to constitute aproper test as to voluntariness. A strong point has been made in thewritten submissions that in the final question as to whether the statementis being made voluntarily which appears at the end of both sessions ofquestioning, the record does not contain any answer of the accused.
It is submitted that the Magistrate erred in deciding on voluntariness inthe absence of an answer to this pointed question. I have to notestraightaway that I have checked with the original record and that in bothinstances the accused has specifically given the answer “Yes “, indicatingthat the statement was being made on his own free will. Learned Counselmay have not noted these answers appearing at the bottom of pages 221and 222 in the original record.
As regards the general submission that the confession should havebeen ruled out as being irrelevant in terms of Section 24 of the EvidenceOrdinance, I would deal with the applicable law and circumstances materialto the case.
Section 127 of the Code of Criminal Procedure Act, No. 15 of 1979empowers any Magistrate to record any statement made to him beforethe commencement of an inquiry or trial.
Section 127 (3) specifically deals with the recording of a statement,being a confession. It requires the Magistrate not to record any suchstatement “unless upon questioning the person making it he has reasonto believe that it was made voluntarily”. This provision requires theMagistrate to make a signed memorandum at the end of the statement,recording his belief that the statement was voluntarily made. Thisrequirement is coupled with the provisions of Section 24 of the EvidenceOrdinance which provides an exception to the general rule of the relevancyof admissions and confessions.
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Section 24 provides that a confession made by an accused person isirrelevant in criminal proceedings iif it appears to the Court to have beencaused by any inducement, threat or promise having reference to thecharge against the.accused person proceeding from any person in atuhority,or from any other person in the presence of the person in authority andwhich is sufficient in the opinion of the Court to give the accused persongrounds for supposing that by making it he would gain any advantage oravoid any evil in reference to the proceedings against him.
This exception which renders a confession irrelevant in criminalproceedings is based on English Law and Coomaraswamy has noted thatSection 24 is similar to Article 22 of the Stephen’s Digest (The Law ofEvidenced. R. S. R. Coomaraswamy, Vol I, page404). In English CommonLaw, the exception is stated in the oft quoted.dictum of Lord Sumner inIbrahim vs Rn which reads as follows:.
”no statement by an accused is admissible against
him unless it is shown by the prosecution to have been a voluntarystatement, in the sense that it had not been obtained from him either byfear of prejudice or hope or advantage excercised or held out by a perosnin authority.”
Following on the lines of the position in the English Law, it has been.constantly held by our Courts that it is the burden of the prosecution toestablish beyond reasonable doubt that the confession is not renderedirrelevant by any inducement, threat or promise as stated in Section 24.
If it appears to a Court that any of the vitating factors of Section 24 appearsto have caused the accused to make the staement, the Court should rulethat the statement is irrelevant.
E. H. T. Gunasekera, J., in the case of Queen vs Cecilin observedthat the provisions of the Criminal Procedure Code referred to above and ofSection 24 should be read together. On this basis he stated as follows:
“ In my opinion a confession is made voluntarily if it is made in
circumstances that do not render it inadmissible by reason of the
provisions of Section 24 of the Evidence Ordinance”
I! – CM 5256
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Therefore a Magistrate recording a statement in the nature of aconfession in terms of Section 127 of the Code of Criminal Procedure Acthas to be mindful of the factors set out in Section 24 of the EvidenceOrdinance, which would result in a confession being irrelevant in crimainalproceedings. The foremost in the series of vitiating factors is the role of aperson in authority in relation to the accused which would mean in normalcircumstances police officers connected with investigations. Since thequestion relates to a possibility of any inducement, threat or promiseemanating from such a person in authority or from any other in the presenceof such person, it is necessary to ascertain the circumstances relevant tothe period in which the accused person, was in the custody of the policeofficers or the period in which such police officers had access to the accusedperson.
The line of questioning by the Magistrate should be directed atascertaining whether the person was sufficiently removed from the pervasiveinfluence of the Police or of any person in authority and the decision tomake the confession has been of his own free will.
Section 24 of the Evidence Ordinance vitiates a confession where fromthe circumstances it appears that there was an inducement, threat orpromise from a person in authority on the basis of which the accusedcould have reasonably assumed that he would get an advantage or avoidany evil in reference to the proceedings against him by making theconfession. On the other hand if the accused decides to make a confessiondevoid of any inducement, threat or promise preceding from a person inauthority, on the basis of a process of his own reasoning, Section 24would not vitiate the confession even if he expected thereby to get anadvantage or avoid any evil to himself or to any other person.
In the sequence of questions addressed by the Magistrate, she hasspecifically asked the question as to why he is willing to make astatement? In both instances when this question was asked by theMagistrate the accused had given similar answers. They are to the effectthat according to his conscience he was aware that he did a wrong thingand that he wanted to save his four friends by making this statement.This answer clearly indicates the state of mind of the accused. He has
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been persuaded by an innate sense of guilt and a desire to save four of hisfriends who were taken into custody and were according to the evidencedetained in the same cell in the prison.
Following upon that answer the Magistrate has specifically asked thequestion whether there was any inducement, threat or promise by thePolice or any person in authority. Both questions have been answered inthe negative.
In a case in England R vs. Rennie the Court of Appeal considered asomewhat similar situation where it was stated that the accused decidedto admit guilt because he expected that if he did so the police wouldcease inquiries into the part played by his mother.
It was held that such a motivation should not result in the confessionbeing excluded. The following observations areVelevant to the facts ofthis case –
“Very few confessions are inspired solely by remorse. Oftenthe motives of an accused are mixed and include a hope that anearly admission may lead to an earlier release or lighter sentence.If it were the law that the mere presence of such a motive, even ifprompted by something said or done by a person in authority, ledinexorably to the exclusion of a confession, nearly everyconfession would be rendered inadmissible. This is not the law.In some cases the hope may be self generated. If so, it is.irrelevant, even if it provides the dominant motive for making ofthe confession. In such a case the confession will not have beenobtained by anything said or done by a person in authority. Morecommonly the presence of such a hope will, in part at least,owe its origin to something said or done by such a person. Therecan be few prisoners who are being firmly but fairly questioned ina police station to whom it does not occur that they might beable to bring both their interrogation and their detention to anearlier end by confession.”
We do not understand the speeches delivered in the House ofLords in DPP vs Ping Lin to require the exclusion of every suchconfession
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It is unecessary and undesirable to complicate the questionby consideration of whether conduct was ‘improper1 or constitutedan “inducement”. The sense and spirit of the principle are moreimportant than the particular wording in which it is expressed.Above all it is to be applied with common sense. The person bestable to get the flavour and effect of the circumstances in whichthe confession was made is the trial judge, and his findings offact and reasoning are entitled to as much respect as those ofany judge of first instance.
How this principle is to be applied where a prisoner, when .deciding to confess, not only realises the strength of the evidenceknown to the police and the hopelessness of escaping convictionbut is conscious at the same time of the fact that it may well beadvantageous to him or, as may have been so in the presentcase, to someone close to him, if he^confesses? How, inparticular, is the judge to approach the question when thesedifferent thoughts may all, to some extent,-^least, have beenprompted by something said by the police officer questioning him?
The answer will not be found from any refined analysis of the conceptof causation nor from too detailed attention to an%particular phrase inLord Sumner’s formulation. Although the question is for the judge, heshould approach it much as would a jury, were it for them. In other words,he should understand the principle and the spirit behind it, and applyhis common sense, and, we would add, he should remind himself that‘voluntary’ in ordinary parlance means ‘of one’s own free will’.”
It is seen from these observations that an inquiry into voluntarinessshould not be hemmed in by an endeavour to make a refined analysis asto the contents of Section 24. The Court should be guided more by thebroad principle contained in the section and ascertain whether thestatement is being made by the accused on his own free will. If it isestablished that the police or a person in authority did not use anyinducement, threat or promise to cause the statement to be made, theother circumstances or the motivation that prompted the accused to makethe statement would not be material factors to exclude the confession interms of Section 24.
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In this instance it is quite clear that the statement has been made afterthe accused was in remand custody for more than 10 days. He has hadample opportunity to reflect on the consequences of making a statement,in his own words he was induced to make a statement, pricked by hisown conscience to make a clean breast of his involvement in thecommission of any of the offences.'
I am of the view that there is no merit in the submission of learnedCounsel, as to the conclusion arrived at by the Magistrate on the questionof voluntariness and the finding of the High Court as to the absence of anyfactors that would result in the confession being irrelevant under Section24 of the Evidence Ordinance.
I have now to deal with the submission of learned Counsel that theconviction for the offence of murder cannot be sustained and the findings,if at all should be of culpable homicide not amounting to murder on thebasis of knowledge.
The evidence in the case clearly establishes that the accused wasmotivated by the overriding consideration of making quick money throughextortion. He has been led to the state of mind by publicity given in themedia to another instance of extortion, where a large sum of money hadbeen collected as ransom. He decided to commit the offence in the vicinityof the place where the victim and he lived. No plan had been made to takethe boy to a distance away from his home. The boy was well known to himand in the scheme of things, if he was released alive the accused wouldsurely have been denied of the fruits of his offence of extortion.
In these state of facts the accused had to necessarily kill the boy inorder to get away with the ransom money. According to the medicalevidence the boy had been killed shortly after the time he is said to haveleft the house. It appears that the accused enticed the boy to come to thegrandmother’s house and thereafter made the ransom call to the father.Shortly after he made the call the boy was killed. The manner in which hewas killed, manual strangulation, leaves no doubt as to the state of mind. of the accused. He immediately put the body into a sack, tied the sack
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and dumped it into a covered cesspit, leading to no inference other thanthat he intended to commit the murder.of the boy. Therefore I see no meritin the submission of learned Counsel that the conviction should havebeen for culpable homicide on the basis of knowledge.
For the reasons stated above the appeal is dismissed and the convictionentered and the sentences imposed affirmed.
BANDARANAYAKE, J – I agreeYAPA, J.- I agreeDE SILVA, J.-1 agreeJAYASINGHE J.- I agree
Appeal dismissed.